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9th Circuit Rules in ModelMayhem.com 'Failure-to-Warn' Case

Rhett PardonMay 31, 2016 3:13 PM PDT

PASADENA, Calif. — In a decision that could spur more internet failure-to-warn cases, the 9th U.S. Circuit Court of Appeals today decided for a second time that Section 230 of the Communications Decency Act does not bar civil claims made by a woman who was raped after she was lured to a bogus casting call on ModelMayhem.com.

Today’s ruling is similar to a previous one made by a 9th Circuit panel in April that sided with the woman, known as Jane Doe No. 14, who was challenging a lower court ruling that tossed her case. The previous ruling by the 9th Circuit was withdrawn in February and re-argued.

The case ended up at the 9th Circuit after a lower court dismissed her claims for monetary damages under Section 230 of the Communications Decency Act, which limits the liability of a website's publisher for content posted by third parties. In this case, it was Doe’s posting of her contact information.

The woman claimed that ModelMayhem operators knew but failed to warn users that two men, Lavont Flanders and Emerson Callum, would use the website to lure victims to the Miami area for bogus modeling auditions. The men, she said, then drugged, raped and filmed her.

Flanders and Callum were tried, convicted and given consecutive life sentences in prison for their activities.

Today, the 9th Circuit, in tossing the lower court ruling and sending it back to the lower court, said that the Communications Decency Act wasn’t meant to create a “lawless no-man’s-land on the Internet.”

“[I]t may be true that imposing any tort liability on [ModelMayhem] for its role as an interactive computer service could be said to have a ‘chilling effect’ on the internet, if only because such liability would make operating an internet business marginally more expensive,” the 9th Circuit said in today’s ruling. “But such a broad policy argument does not persuade us that the CDA should bar the failure to warn claim. We have already held that the CDA does not declare a general immunity from liability deriving from third-party content.

“Congress has not provided an all-purpose get-out-of-jail-free card for businesses that publish user content on the internet, though any claims might have a marginal chilling effect on internet publishing businesses. Moreover, the argument that our holding will have a chilling effect presupposes that Jane Doe has alleged a viable failure to warn claim under California law. That question is not before us and remains to be answered.”

Jane Doe No. 14’s case has attracted the attention of numerous Internet companies and organizations that sided with ModelMayhem.com. In an amicus brief, Facebook, Craigslist, Tumblr, the Computer and Communications Industry Association, The Internet Association and Care.com said that they have settled on interpretations granting broad immunity to online intermediaries for harms arising from third-party content.

Industry attorney Larry Walters of Walters Law Group, who is not Involved in the suit, told XBIZ that ultimately the issues in the case decided today could be headed to the U.S. Supreme Court.

“The 9th Circuit seems to struggle with its understanding of the broad immunity afforded by Section 230, as evidenced by this case and some previous decisions," Walters said.

"Unfortunately, the tremendous burden created by the warnings contemplated by the court’s ruling could destroy many online service providers’ businesses, given the vast resources and manpower that would need to be devoted to discharging this newly crafted legal duty.

"The case is not over yet, but the Section 230 issue has been addressed."